With the acceleration of globalisation and the increasing blurring of borders between states, it has become commonplace for individuals and legal entities to cause harm not only within the territory of the state of their permanent residence, citizenship or registration, but also within the territory of foreign states. For example, in Japan, the number of road traffic accidents involving foreigners has risen by 30% over the last five years.
Such acts give rise to legal relationships concerning compensation for the damage caused (in legal theory, these are also referred to as ‘tortious legal relationships’), which are further complicated by a foreign element.
At the same time, from legal theory we also know that the presence of a foreign element in any legal relationship, including tortious ones, gives rise to a conflict of jurisdictions in the broad sense, resulting in problems not only in the choice of applicable substantive law, but also in the choice of jurisdiction (state), whose courts have jurisdiction to hear a dispute arising from such legal relationships. In other words, the problem of determining the international jurisdiction of such disputes arises.
Accordingly, this article will focus specifically on the difficulties in determining the jurisdiction (state) whose courts have competence to hear tort disputes with a foreign element (hereinafter we will also use the term ‘international jurisdiction over tort disputes’).
It should be noted from the outset that the question of determining the international jurisdiction of tort disputes with a foreign element, unlike the question of the choice of applicable substantive law, is a procedural one. Accordingly, when determining international jurisdiction, conflict-of-laws rules are not applied, nor are the substantive provisions of international treaties characteristic of the choice of substantive law in legal relationships involving a foreign element.
However, if we analyse the provisions of both international and national legislative acts concerning the determination of international jurisdiction in tort disputes, we will see that there is nevertheless a certain pattern and logic in determining the competent jurisdiction, which can be regarded as a kind of conditional procedural rule.
With regard to national legislation, depending on the approach to the codification of private international law adopted by a particular state—whether autonomous or sectoral—the relevant provisions may be contained either in separate laws on private international law or incorporated into procedural codes.
Thus, in Ukraine, this issue is regulated by paragraph 3 of Part 1 of Article 76 of the Law of Ukraine ‘On Private International Law’, which provides that the courts of Ukraine have jurisdiction to hear any cases with a foreign element concerning compensation for damage, provided that such damage was caused on the territory of Ukraine.
Similar wording can be found in the national legislation of other countries. For instance, Part VIII of Article 3-3 of the Japanese Code of Civil Procedure provides that, as a general rule, Japanese courts have jurisdiction over tort disputes if the tort occurred within the territory of Japan. Similar wording is also found, for example, in Article 272 of the Civil Procedure Law of the People’s Republic of China.
However, other formulations can be found in the national legislation of foreign states. For instance, Article 129(1) of the Swiss Private International Law Act provides that Swiss courts have jurisdiction over tort disputes with a foreign element, including where the act causing the damage took place in Switzerland or where the adverse consequences of such an act occurred there. This issue is similarly regulated in the Hungarian Private International Law Act (Article 94(1) of the Act), the Romanian Code of Civil Procedure (Article 1.081(1)(3) of the Code), and the French Code of Civil Procedure (Article 46 of the Code).
By contrast, an interpretation of Section 32 of the German Code of Civil Procedure suggests that tort disputes with a foreign element fall within the jurisdiction of German courts if the unlawful act took place on German territory.
A similar difference in the wording used can also be seen in international legal instruments regulating the international jurisdiction of tort disputes.
Thus, Article 49 of the Treaty between Ukraine and the Czech Republic on Legal Assistance in Civil Matters states that tort disputes fall within the jurisdiction of the courts of the state on whose territory the event giving rise to the claim for damages occurred. A similar formulation is used, for example, in Article 35 of the Treaty between Ukraine and the Republic of Poland on Legal Assistance and Legal Relations in Civil and Criminal Matters.
Article 5(3) of the 2007 Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the so-called Lugano Convention) provides that tort claims with a foreign element fall within the jurisdiction of the courts of the State in which the unlawful act was committed or may be committed. This issue is similarly regulated in EU Regulation No 1215/2012 of 12 December 2012 (the so-called Brussels I bis).
Thus, we see that, according to the logic underlying all these provisions, international jurisdiction over tort disputes with a foreign element is fundamentally linked to the state where the damage was caused (in other words, with the place where the damage occurred), which is a consequence of the development of tort law and the emergence of alternative jurisdiction for this category of legal relations — forum delicti commissi.
However, as we can see from the specific provisions, approaches to determining what exactly constitutes the place where the damage occurred vary across different states and different legislative acts. In the doctrine of international civil procedure, two fundamental approaches to understanding the place where the damage occurred are traditionally distinguished: (1) the place where the unlawful act leading to the damage was committed; (2) the place where the negative consequences of such an act occurred. As we see in practice, the legislator may favour one of the approaches—a narrow interpretation of the place where the damage occurred (Germany)—or combine both approaches—a broad interpretation of the place where the damage occurred (Switzerland, France, Hungary, Romania)—or leave this issue unspecified altogether, using a general formulation (Ukraine, PRC, Japan).
At first glance, this issue of interpretative ambiguity is purely theoretical, since in most cases the place where the unlawful act is committed and the place where the negative consequences occur coincide territorially, at least within a single country. However, the modern world is constantly evolving, leading to an increasing number of situations where an unlawful act is committed in one country, whilst the adverse consequences of such an act occur in another. For example, the dissemination of false information online or the illegal transfer of funds from one country to another.
The growing number of such situations creates significant problems, as in such cases the question of which approach the legislator has adopted becomes key to determining which state’s courts will hear the dispute. Thus, under a broad interpretation, the claimant has the option to choose one of several jurisdictions whose courts may hear the relevant dispute; under a narrow interpretation, the claimant is restricted to a single jurisdiction, in which it may be objectively problematic or impossible for the claimant to litigate under certain circumstances; and where a general formulation is used, the problem of legal uncertainty arises, since in such a case the interpretation is carried out by the court during the hearing of the relevant dispute, with the result that a person cannot know in advance in which country they will be able to bring a claim.
In view of the above, it can be concluded that problems arise both when legislation uses the general wording ‘place where the damage occurred’ or ‘place of the tort’, as, for example, in Ukraine or Japan, and when this concept is interpreted narrowly.
It is precisely for this reason that international practice is gradually shifting towards a broad understanding of the place where the damage occurred, even if this does not follow from a literal interpretation of the relevant legal provisions.
Thus, as early as 1976, the Court of Justice of the European Union, in its landmark judgment in the case of Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA, stated that in cases where the place where the unlawful act was committed and the place where the adverse consequences occurred do not coincide, the place where the unlawful act occurred should be understood to mean both the place where the unlawful act was committed and the place where the adverse consequences occurred (this approach, developed in the subsequent case law of the Court of Justice of the European Union, in particular in the Kronhofer case of 2004, is still applied today).
In Germany, the courts, in interpreting Section 32 of the German Code of Civil Procedure, also consistently note that the place where the unlawful act was committed must be understood to mean both the place where the unlawful act was committed and the place where the consequences of such an act occurred (see, for example, the Decision of the German Federal Supreme Court of 2 March 2010, VI ZR 23/09).
In China, in 2015, the Supreme People’s Court adopted the Interpretation of the Civil Procedure Law of the PRC (one of the sources of law in the PRC), Article 24 of which also states that the place where the damage occurred must be understood as both the place where the unlawful act took place and the place where the negative consequences arose.
Thus, at the present stage, the problem of the ambiguous interpretation of the ‘place where the damage was caused’ is gradually being resolved, primarily through judicial rule-making, and is moving towards a broad understanding of this category, which is entirely in line with the challenges of the modern world, where damage can be caused at the touch of a button on the other side of the globe.
Source: Yur-Gazeta
